The devil is in the details: entrenching human rights protections in the UK’s devolved nations

Abstract

In states with multilevel governance systems, such as the United Kingdom (UK), human rights are subject to variable gradations of implementation based on the political will and the legal competence of the subnational governments to implement international law. Entrenching rights through incorporation secures domestic enforcement, which, in turn, paves the way for proactive human rights culture change and guards against human rights regression. This article examines the future of increasing human rights protections in the devolved nations of the UK in the wake of the Incorporation Reference decision. First, the article reflects on the opportunity to entrench international human rights protections through incorporation as one form of implementation. Next, Scotland’s path to increasing implementation of the United Nations Convention on the Rights of the Child (UNCRC) will be presented, including an examination of the key features of the UNCRC (Incorporation) (Scotland) Bill. These features are then juxtaposed against the challenges raised in the Incorporation Reference case. International law is the lens through which the analysis is delivered, aligning with UN human rights treaty body guidance and focused on delivering human rights in national settings. Finally, the article argues that, despite the difficulty posed by the interpretation of devolved legal competence delivered in the Incorporation Reference judgment, from the perspective of international law, there remains a great opportunity to entrench human rights in the devolved nations through incorporation legislation and other measures that respect, protect and fulfil human rights.